Supreme Court allows appeal to return children to England due to High Court's excessive delay violating Hague Convention principles.

THE SUPREME COURT

Denham J.

Geoghegan J.

McCracken J.

No. 139 of 2002

IN THE MATTER OF THE HAGUE CONVENTION

AND IN THE MATTER OF T.M. AND D.M.

Minors

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM,

As the Central Authority for Ireland

EX PARTE E.M.

Applicant/Appellant

and

J.M.

Respondent

Judgment delivered on the 9th day of July, 2003 by Denham J.

1. Appeal

This is an appeal by E.M., the applicant/appellant, hereinafter referred to as the applicant, from the judgment of the High Court

(O’Donovan J.) given on the 18th day of July, 2002 and the order perfected on the 3rd October, 2002 whereby the High Court refused

to return the minors T.M. and D.M. to the jurisdiction of the courts of England and Wales. The applicant seeks an order directing that

the minors be returned forthwith to the jurisdiction of the courts of England and Wales.

2. The High Court

Judgment was delivered in the High Court on the 18th of July, 2002. The basic facts are not in contention. The applicant, the father,

is an English national of Irish parents and the respondent, the mother, is an Irish national. They were married on the 24th day of

November, 1995 and there were two children of the marriage both of whom were born in Ireland. T.M. was born on the 1st day of

May, 1996 and D.M. was born on the 6th day of December, 1997. Following their marriage the applicant and respondent resided

together in Leinster and continued at the same address during the time that their children were born. They continued to live in

Leinster until the 22nd day of December, 1999 when they and their two children emigrated to England where they lived together until

the 2nd day of September, 2001. The High Court noted that during the year 1999 unhappy differences arose between the applicant

and the respondent, in the event the respondent obtained a barring order against the applicant on 7th October, 1999. However,

following the making of that barring order there was a reconciliation between the applicant and the respondent which culminated in

their emigrating to England on the 22nd day of December, 1999 with the children. From that time the family resided in England until

the 2nd day of September, 2001 when the respondent, without the knowledge or consent of the applicant, returned to Ireland with

the children and since then the respondent and the children have resided in Leinster with the respondent’s parents. After the

respondent’s departure to Ireland on the 2nd day of September, 2001, the applicant found a note addressed to him by the respondent

advising that she had taken their children to Ireland and that he should not attempt to find her.

The High Court held that the habitual residence of the children was in the United Kingdom. Further, that parental responsibility for the

minors rested on both the applicant and the respondent. The High Court held that the respondent, without the consent or knowledge

of the applicant, had removed the infants to Ireland on the 2nd day of September, 2001 and continues to retain the infants in this

State. The High Court had no doubt that that was a wrongful act pursuant to the provisions of article 3 of the Hague Convention.

There is no appeal against that finding.

The High Court, however, found that the applicant subjected the respondent to a “vicious beating” on 1st September, 2001 as a

result of which she had to attend hospital for treatment. The High Court had no doubt that it was that assault which precipitated the

respondent to leave the applicant and bring her children back to Ireland.

The respondent had also accused the applicant of assaulting the minor T.M. The High Court did not adjudicate on this issue, stating

that given that the applicant had undertaken on oath that in the event that the High Court were to order the return of the minors to

England he would move out of the family home until such time as the matters in dispute were determined by the courts of England.

The High Court added that although the respondent had also alleged that T.M. had been psychologically traumatised by the cruelty

towards him from the applicant by witnessing grotesque acts performed on her by the applicant, there was no medical evidence

whatsoever to support that assertion and the High Court had no regard to it.

The issue upon which the High Court judgment turned was the application of article 13 of the Hague Convention to the circumstances

of T.M. Thus the sole issue on this appeal is the article 13 exception.

The High Court judge stated in his judgment that when in the course of the hearing before him on the 27th day of February, 2002 he

learned that T.M. had been diagnosed as suffering from autism and that the Health Board Autism Team in this country had

recommended an individual educational programme for the child, he adjourned the hearing to enable the parties to ascertain what

facilities might be available in England to deal with T.M.’s autistic problems. The hearing was resumed before the learned trial judge on

the 25th day of June, 2002 on which occasion he read and considered the contents of an affidavit sworn on the 1st day of June,

2002 by the solicitor for the respondent and many documents exhibited in that affidavit and he also heard oral evidence from the

applicant and from the respondent, both of whom were cross-examined with regard to the contents of the affidavits which they had

sworn. The learned trial judge was referred to a report prepared by Dr. O’G., a consultant child and adolescent psychiatrist attached

to the Health Board in Ireland which incorporated his recommendations with regard to T.M.’s care arising from the diagnosis that T.M.

was suffering from severe autism and to a letter dated the 10th day of May, 2002 which accompanied that report in which Dr. O’G.

certified that the quality of T.M.’s care is of optimal quality and that the time and consequent disruption to T.M.’s developmental

programme, and the time that it would take to set up anew elsewhere, would heavily prejudice any decision to move T.M. to another

school area. The learned trial judge stated that he had also learned that a specially dedicated school for autistic children had been

established in the county in which the child was and that T.M. had received a placement in the school.

On the other hand, a letter dated the 18th day of March, 2002 addressed to the applicant’s solicitors by Dr. E.A., a consultant

community paediatrician attached to the Community and Mental Health Services of the United Kingdom had indicated that should T.M.

be returned to England he would be immediately reassessed based on information already available to Dr. E.A. and also considering

any additional assessment that has been carried out in Ireland and that in the light of the diagnosis of autism he would be referred to

specialist community services for support.

The High Court adjourned the hearing of the 25th day of June, 2002 to enable Dr. A. to respond to queries which the trial judge had

raised. The hearing resumed on the 10th day of July, 2002 when the court was referred to a letter dated the 8th day of July, 2002

addressed to a law centre by Dr. A. from which it appeared that there are services available in England for children with problems

such as those from which T.M. is suffering but they are different in organisation from the services which are available in Ireland.

Nevertheless,

Dr. A. was of the view that there is no reason to doubt that the services which are available in the United Kingdom are comparable in

quality to those which are available in Ireland.

The learned High Court judge held:-

“Accordingly, while core services would be available immediately, T.M.’s educational special needs would be subject to

reassessment and according to Dr. A. this could take several months although she does say that there are mechanisms for

addressing urgent needs and these could be implemented to ensure a short term support pending a fuller assessment. In that

regard, I was referred to a letter dated the 11th day of July, 2002 addressed to the mother’s solicitor from a Mr. S.P., an

inclusion and assessment officer of city council in which Mr. P. indicated that the current experience is that such an

assessment can take about six months. Mr. P. also indicated that the City Local Education Authority does not have any school

exclusively for autistic pupils. Apparently, there are a range of options, both in mainstream schools and special schools,

available to pupils with autism and an appropriate decision is made based on an assessment of their individual needs.”

The learned trial judge concluded that:

“As I interpret the advices with regard to T.M. furnished by Dr. P.O’G. in this country and by Dr. L.A. in the United Kingdom, in

both the Republic of Ireland and in the United Kingdom, the facilities for dealing with the condition of severe autism from which

T.M. suffers are comparable. Moreover, both are agreed that any disruption of a programme, which is currently in place for T. in

this country; apparently, through the good offices of Dr. O’G., will have a detrimental effect on his development although Dr. A.

maintains that any lost ground would be recovered within a year. In that regard, it seems to me that, for a boy of six years of

age, as is T.M., a year is quite a long time. However, in my view, what is more worrying is that, while T. has received a

placement in a specially dedicated school for autistic children in this country, it appears from Dr. A.’s letter of the 8th of July

last that his special educational needs would be subject to reassessment in the United Kingdom and that this reassessment

could take several months; in fact, accordingly to Dr. P. about six months. To my mind, it is implicit in Dr. O’G.’s report that

such a delay could be very detrimental to T.’s development and I cannot interpret Dr. A.’s letter as suggesting otherwise

although, as I have already indicated, she would expect that he would recover any lost ground within a year. As I have also

indicated, I think that a year is a very long time in the life of a six year old autistic child and, given that Dr. A. concedes to

that, in the event that T.M. was returned to the United Kingdom, respite care would not be readily available to him and he

would have to be reassessed within regard to his educational needs; an assessment which could take quite a long time, so that

it would be quite a long time, if at all, before he would have educational facilities comparable to those for which he has

currently received a placement in this country, does it follow that, were I to direct that T. be returned to what I believe to be

his habitual residence in the United Kingdom there would be a grave risk that he would be exposed to physical or psychological

harm or that, otherwise, would be placed in an intolerable situation as envisaged by article 13 of the said covenant?”

The learned trial judge then considered the law on “grave risk”. He held:

“In this case, it seems to me, that in the event that I were to return T.M. to the United Kingdom, while, eventually, he might

well have his autistic needs satisfied in a manner comparable to the programme which is presently in place for him in this

country, it appears that, in the short term, the United Kingdom is unlikely to be able to provide comparable services to those

which are presently in place for him. In those circumstances, I have little doubt but that, were he now to return to the United

Kingdom, his development would be compromised and it seems to me that compromise would constitute the type of physical or

psychological harm which is contemplated in article 13 of the Convention.”

He held:

“In short, it is my judgment, that were I to direct that the said T.M. be returned to the United Kingdom it is more likely than not

that the good that has been achieved by the quality of his care in this country to date would be seriously inhibited and while, in

the long term, the lost ground might be recovered, I am not persuaded that such a recovery is certain, and, in any event, I am

not persuaded that I should expose the child to any risk, even a short term one.”

Having so determined the issue the learned trial judge went on to state also:

“For the sake of completeness, I think that I should point out that I recognise that the father is a man of very limited means,

and that being so, it is very likely that my refusal to order the return of the said minors to their habitual residence in the United

Kingdom will result in a significant reduction in the opportunities which he will have for access to his two sons. I appreciate that

this will be a cause of distress for him and, probably, for his two children also and that fact has been to the forefront of my

mind in arriving at the conclusion at which I have arrived. However, rightly or wrongly, I think that, on balance the potential risk

to T.’s wellbeing were I to order his return to the United Kingdom outweighs the possible disruption of the relationship between

the father and his two children as a result of their remaining in this country.”

3. Notice of Appeal

Against that order and judgment of the High Court the applicant has appealed on the following grounds:

“1. The Trial Judge erred in fact in finding that, it could be quite a long time, if at all, before the infant T.M. would have

educational facilities in the United Kingdom comparable to those for which he has currently received a placement in this

country.

2. The Trial Judge erred in fact in finding that, in the short term, the United Kingdom is unlikely to be able to provide comparable

services for the infant T.M. to those which are presently in place for him and that his development would be compromised.

3. The Trial Judge erred in fact and in law in finding that, T.M.’s development would be compromised by his return to the

jurisdiction of the Courts of England and Wales and that compromise would constitute the type of physical or psychological

harm that is contemplated by article 13 of the Convention.

4. The Trial Judge erred in law in finding that he should not expose the infant T.M. to any risk, even a short term one, by

ordering his return to the jurisdiction of the Courts of England and Wales.

5. The Trial Judge erred in fact and in law in finding that the potential risk to T.M.’s wellbeing were he to order his return to the

United Kingdom outweighed the possible disruption of the relationship between the father and his two children as a result of

their remaining in this country.

6. The Trial Judge erred in law in failing to exercise his discretion pursuant to article 13 of the Convention.

7. The Trial Judge erred in law in refusing to order the return of the minors to the jurisdiction of the Courts of England and

Wales pursuant to article 12 of the Convention.

8. The Trial Judge erred in fact and in law in finding that there was a grave risk that the return of the infants to the jurisdiction

of the Courts of England and Wales would expose them to physical or psychological harm or otherwise place them in an

intolerable situation pursuant to article 13(b) of the Convention.”

4. Submissions

Written and oral submissions were presented to the court on behalf of the applicant and the respondent. Counsel for the Attorney

General indicated that submissions would be made if required on a consequent issue in which there would be an interest.

5. Law

At issue in this case is an exception to the general rule under the Hague Convention and the law. The general rule and principle is

that children wrongfully removed from the jurisdiction of their habitual residence shall be returned by a requested country to their

habitual residence. The convention which is incorporated into Irish domestic law anticipates a short summary procedure in which the

court considers the situation and returns the child to the jurisdiction in which he or she is habitually resident so that issues such as

custody and access may be determined by that court.

To that general principle there are exceptions and the exception in issue in this case arises under article 13 (b) of the Convention on

the Civil Aspects of International Child Abduction, referred to as the Hague Convention. Article 13 provides:

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not

bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the

child in an intolerable situation.”

Thus the convention itself has created an exception to the general principle that a child should be returned to the jurisdiction of his

or her habitual residence. However, the effect of article 13 is not automatic. First of all, there has to be the decision as to whether

article 13 applies. Then, if it is found that it does apply, the court has a discretion. This was stated clearly by Lord Donaldson of

Lymington M.R. in In re: A. (Minors) (Abduction: Acquiescence) [1992] 2 FLR 14 at p. 28 when he stated:

“That said, the convention does itself enter a caveat, which is contained in Article 13. Before I consider whether it applies in

this case it is, I think, important to emphasise what is the consequence if it does apply. It is not that the court will refuse to

order the return of the child to its country or jurisdiction of habitual residence. It is not that the court will assume a wardship or

similar jurisdiction over the child and consider what order should be made as if the child had never been wrongfully removed or

retained. The consequence is only that the court is no longer bound to order the return of the child, but has a judicial discretion

whether or not to do so, the discretion being exercised in the context of the approach of the convention.”

This approach to the Convention has been approved in this jurisdiction, see B.B. v. J.B. [1998] 1 I.R. 299 at p. 312, where I stated:

“Article 13 is an exception, which is itself for the benefit of children; their welfare is the paramount consideration. The essence

of the exceptions is to give judges discretion. Article 13 is not limited by arts. 3 or 12. It is an article ‘notwithstanding’ article

12. It is an article enabling the fundamental concepts of the Hague Convention to be achieved through the discretion of the

courts or administrative authority where relevant.”

At the core of the exception in issue is the concept of “grave risk.”

The nature of a “grave risk” under article 13 of the Hague Convention was analysed in R.K. v. J.K. [2000] 2 I.R. 416. Barron J.

determined that a grave risk for the purposes of the Hague Convention could exist only in two situations (a) when return of the child

puts the child in imminent danger prior to the resolution of the custody dispute, e.g. returning the child to a zone of war, famine or

disease, (b) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual

residence, for whatever reason, might be incapable or unwilling to give the child adequate protection. Prima facie the basis of the

defence that there was grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place

the child in an intolerable situation might spring from the circumstances which prompted the wrongful removal and/or retention.

Events subsequent to the removal and/or retention would be material only insofar as they tended either to aggravate any original

intolerable situation or to create one and also would normally relate to matters which had occurred in the requesting State.

6. The High Court judgment

The Hague Convention has the force of law in the State; see s. 6 Child Abduction and Enforcement of Custody Orders Act, 1991. The

objects of the convention are to secure the prompt return of children wrongfully removed in any contracting State and to ensure that

rights of custody and of access under the law of any contracting State are effectively respected in the other contracting State;

article 1 of the Convention on the Civil Aspects of International Child Abduction. It is mandatory on the State to return the child to

the requesting State of habitual residence of the child. However, to that general rule there are exceptions. This case was considered

by the High Court to raise one of those exceptions. The learned trial judge described the situation as:-

“… it appears to me that, accepting as I do, that the habitual residence of the minors herein is the United Kingdom and that the

mother removed them from the jurisdiction of the United Kingdom without the knowledge or consent of the father, it is

incumbent upon me, by virtue of the provisions of article 12 of the Hague Convention, which has the force of law in this

country, to order the return of the said minors to the United Kingdom unless I am satisfied that there is a grave risk that the

return of one or other of them to the United Kingdom would expose the child to physical or psychological harm or otherwise

place the child in an intolerable situation as provided for by article 13 of the said convention.”

In this approach the High Court judge was correct. However, on the application of the principle he fell into error. Whilst commencing

to hear the application as an application under the Hague Convention the High Court judge fell into error and proceeded to conduct a

hearing more akin to a custody hearing.

The application came on for hearing before the High Court on 27th February, 2002. Such hearings are summary matters and should be

conducted, in general, on affidavit. Any oral evidence should be obtained expeditiously.

On 27th February, 2002 the High Court fell into error, and the learned trial judge adjourned the hearing to enable the parties to

ascertain what facilities might be available in England. At this stage the learned High Court judge, rather than addressing the issues of

the convention, began addressing the issues of the welfare of the child in a way which is appropriate in custody hearings but not in

hearings under the Hague Convention. He continued this approach and considered further the health facilities available to the child in

Ireland and in England and Wales. He found them to be comparable. However, he held that there would be a delay on any return to

the United Kingdom in reassessing the infant T.M.. He held that a disruption would have a detrimental effect on the infant, although

he noted that any lost ground would be recovered within a year, but he took the view that a year is a long time.

The essence of the decision of the High Court was that, while eventually if T.M. was returned to England he would have his autistic

needs satisfied in a manner comparable to the programme which exists in this State, in the short-term England and Wales was unlikely

to be able to provide comparable services. In those circumstances the High Court held that to return the child to England and Wales

would lead to the physical or psychological harm as contemplated in article 13. In this decision the High Court erred.

While it may be that the systems of welfare available to T.M. are comparable in both jurisdictions, and while it may well be that there

might be a delay in achieving comparable care after the movement of a child, and while such a disruption is to the disadvantage of

the child, such a situation is not the “grave risk” provided for in article 13 of the Hague Convention. The learned High Court judge’s

error is illustrated further in his finding (for the sake of completeness) that, on balance, the potential risk to T.M.’s wellbeing were he

to return him to England and Wales outweighs the possible disruption of the relationship between the father and his two children as a

result of their remaining in this country. This is a classic issue, a classic balance to be achieved, in cases of custody and access,

matters for hearing in custody cases, not appropriate to the summary hearing envisaged by the Hague Convention. I am satisfied that

the learned High Court judge fell into error in this case in his application of the grave risk exception under the Hague Convention.

7. Grave Risk

Under article 12 of the Hague Convention, where a child has been wrongfully removed and at the date of the commencement of the

proceedings a period of less than one year has elapsed from the date of the wrongful removal, the court shall order the return of the

child forthwith. Article 13, which has been set out previously, provides exceptions to the provisions of article 12. The concept of

“grave risk” established under article 13 is narrow. Further, even if the grave risk is proved the court still has a discretion. In the

Explanatory Report of Elisha Perez-Vera, referring to article 13, it is stated:

“In general, it is appropriate to emphasize that the exceptions in these two Articles do not apply automatically, in that they do

not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion – and

does not impose on them a duty – to refuse to return a child in certain circumstances.”

A similar approach has been taken in the United States of America. In International Child Abduction: Guide to Handling Hague

Convention Cases in the U.S. Courts, published in 1997, the Hon. James De Garbolino states, at p. 156:

“Two defences to the return of a child must be proved by clear and convincing evidence. The first of these defences is that

which is set forth in Article 13(b) of the Convention, permitting a court to refuse to return a child if it finds that ‘there is a

grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an

intolerable situation.’ As with the previous defences, even though a defence of grave risk is established, the court is still not

required to deny the petition, and the court may exercise its discretion to order the child returned. Although the Convention has

been in effect in the United States for approximately nine years, no published U.S. cases have yet sustained a ‘grave risk’

defence.

The terminology used in this subparagraph of Article 13 was precisely chosen, and was meant to exclude the type of evidence

which is typical to a determination of the merits of a custody case. Thus, evidence should be excluded if its relevance is

primarily directed to a choice between either parents or locale. Similarly, both the Perez-Vera Report and the Text and Legal

Analysis make the point that the evidence must be more than that which would demonstrate that the country to which the

child is to be returned is more impoverished than the country to which the child was abducted, or that educational or other

opportunities available to the child would be enhanced by a refusal to return.”

In Thompson v. Thompson [1994] 3 S.C.R. 551 the Canadian Supreme Court considered article 13 of the Hague Convention. Of the

grave risk exception La Forest J. stated at p. 596:

“It has been generally accepted that the convention mandates are more stringent tests than that advanced by the appellant.

In brief, although the word ‘grave’ modifies ‘risk’ and not ‘harm’, this must be read in conjunction with the clause ‘or otherwise

place the child in an intolerable situation.’ The use of the word ‘otherwise’ points inescapably to the conclusion that the

physical or psychological harm contemplated by the first clause of article 13(b) is harm to a degree that amounts to an

intolerable situation.”

I have already endorsed this approach: R.K. v. J.K. [2000] 2 I.R. 416 at p. 434 and do so again. What is described in article 13 (b) is

an intolerable situation, a serious risk. The analysis by Barron J. of article 13 (b) in R.K. v. J.K. has already been set out.

8. Decision on Grave Risk

In this case the learned High Court judge erred in prolonging the High Court hearing and conducting what was in essence a custody

hearing. The learned High Court judge erred in conducting an analysis of the health systems of the two jurisdictions. Whilst very rare

situations may arise where such a comparison may be relevant, at this time I cannot conceive of any such situations. The learned

trial judge found the systems of the two jurisdictions comparable yet went on to analyse the potential delay in the services in England

and determined the case on that potential delay in the optimal care of the child. When this case came on for hearing in the High

Court in Dublin the assessment of T.M. had not been concluded in England, because of his wrongful removal to Ireland. Ultimately the

assessment of T.M. was concluded in Ireland, because of his wrongful removal to this jurisdiction. The absence of a final assessment

in a jurisdiction or a potential delay in a jurisdiction in the circumstances of this case is not “grave risk” as contemplated by article 13

(b).

I wish to make it quite clear that I am not excluding for all time a situation where a comparison of health or education or other

services should be excluded from a case where the grave risk exception is in issue. However, any such situation would be exceptional.

The Hague Convention is an international agreement to which Ireland is a party. As already stated, the Hague Convention has the

force of law in Ireland, see the Child Abduction and Enforcement of Custody Orders Act, 1991 s. 6 (1). In construing such an

international treaty it is appropriate to give consideration to cases and authorities of other jurisdictions where this convention is law.

However, even without such consideration it is clear from Irish case law that the grave risk exception arising under article 13 (b) is

one which should be strictly applied in the narrow context in which it arises. Considering the exception in the circumstances of this

case, it is clear that the grave risk exception does not arise. Consequently, any discretion a court may have in a situation where a

grave risk does exist does not arise either.

8.2. Custody

Ultimately it may be that the judicial determination on the issue of custody is that the welfare of the children is best met by them

being in the care of the respondent in Ireland. Issues such as their care and education will be matters for such a court in addressing

the issues of custody and access. However, that is not for this court on this application.

8.3. Undertakings

It was indicated to the High Court and to this Court that the applicant would give undertakings to the court. It was indicated that he

would vacate the family home pending the determination of proceedings in England. Undertakings have been accepted by this Court in

previous cases. It is manifestly clear that undertakings by the applicant should be made part of the order in this case.

8.4. D.M.

This application relates to two children. The matter of the second child was not addressed by the High Court. The judgment of the

High Court must be read incorporating the inferred determination that since T.M. was not to be returned then D.M. should not be

returned.

9. Delay

In this case there has been an inordinate delay. Quite clearly it is a case where everything which could go wrong did go wrong. I

attach no blame to any single person or institution. However, the case indicates a most unsatisfactory situation.

The facts relevant to the delay which has occurred are as follows:

1. The two children were brought to Ireland on the 2nd day of September, 2001.

2. The request for their return from the United Kingdom Authority was made on the 8th day of October, 2001.

3. The summons was issued on the 9th day of November, 2001.

4. The interim order was made on the 9th day of November, 2001.

5. The full hearing began on the 27th day of February, 2002.

6. This hearing was adjourned on a number of occasions, to obtain information from England as to the care which would be

available to the child T.M..

7. It was once again adjourned on the 10th day of July, 2002 for a further hearing.

8. Judgment was given on the 18th day of July, 2002.

9. There were repeated requests to the Central Office of the High Court during August and September 2002 for a perfected

order. The perfected order was issued ultimately on the 3rd day of October, 2002.

10. The order was perfected on the 3rd day of October, 2002.

11. The notice of appeal was dated the 4th day of October, 2002.

12. Problems arose because there was no stenographer in the High Court on the first day of the hearing and evidence had to be

agreed. On the 8th day of November, 2002 the applicant’s solicitor sent a draft for agreement to the respondent’s solicitor

which draft was agreed by the 5th day of December, 2002

13. The High Court judge had handed down to the parties a written copy of the judgment when he gave it on the 18th day of

July, 2002. It contained the full names of the parties. A signed copy of the judgment became available on 5th December, 2002.

14. There was an attempt to lodge the books of appeal in the Supreme Court office on the 10th day of January, 2003 which

was rejected, apparently because identifying names had not been removed from the judgment.

15. Attempts were made to obtain a signed copy of the judgment which contained no identifying names. A signed copy of the

judgment with no identifying names became available on the 12th day of February, 2003.

16. Books of appeal were lodged on the 10th day of March, 2003.

17. The certificate of readiness was signed on the 1st day of May, 2003.

18. On the 6th day of May, 2003 a letter issued from the Supreme Court office giving the date of the appeal.

19. The date of appeal was the 26th day of June, 2003 upon which day this case came on for hearing in the Supreme Court and

judgment was reserved.

20. No application was ever made in open court for any documents or for the case to be moved or case managed.

The Courts have on many occasions stated that cases relating to child abduction should be processed expeditiously. In C.K. v. C.K.

[1994] I.R. 250 in the High Court on 27th November, 1992 I stated at p. 267;

“Any excessive delay or inquiry into this process by which the children are returned to their habitual residence only serves to

defeat the objectives of this Act. The Act is to protect children from being wrongfully removed from the place of their habitual

residence. The corollary is that custody should be determined by the courts of that country. This is done with the welfare of

the children in mind. The concept of welfare is the foundation of the Act of 1991.”

In that case an order was made returning children to their habitual residence of Australia. An application for a stay on the order was

refused by the Supreme Court. Finlay C.J. stated at p.p. 269, 270;

“The Court has carefully considered the situation which now arises. If the court were to grant a stay pending the determination

of this appeal in view of the five day hearing and the nature of the delays which unfortunately apply as regards prosecuting the

appeal, it must of necessity be five on six weeks at least before the appeal could be heard or determined. It is an appeal raising

a new question which would require a full court. It is not a question of the convenience of the Court but the actual logistics of

getting the appeal before the Court. In those circumstances the wife who has apparently been a substantial earner for the

purpose of keeping the children in Australia has already broken her leave, would have to return and come back again. The

husband through no fault of his own no doubt is not in a position to provide funding for those sort of return journeys. The

children will be in a state of having been removed from Australia relatively recently, will then be in a state of being held over for

longer here and if the judgment of the High Court should be affirmed would have to go back after that.

Bearing all these features in mind and bearing in mind particularly that there was a wrongful removal of the children, and that

what this whole code is about is child abduction in that sense, and bearing in mind that there is no doubt that the husband has

full access to the courts in Australia who will in accordance with the same principles as would these courts with the question of

the welfare of these children, the Court is satisfied that in the interests of justice and in the interest of the children as well,

that it should not grant a stay. I refuse the application for a stay.”

An underlying principle of the convention is that issues of custody and access should be determined in the jurisdiction of the child’s

habitual residence. Issues of welfare of the child are best determined in the jurisdiction of his or her habitual residence. Such a

principle also protects children from abduction across State boundaries. Thus the requirement exists that the process of returning

children who have been wrongfully removed be expeditious. Article 1 of the Hague Convention provides that the objects of the

convention are:

“(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one

Contracting State are effectively respected in the often Contracting States.”

(Emphasis added).

Article 2 provides:

“Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of

the Convention. For this purpose they shall use the most expeditions procedures available.”

(Emphasis added).

Article 11 states:

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of

commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative

or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons

for the delay …”

(Emphasis added).

The importance of expeditious court hearings has been emphasised in previous cases in this jurisdiction.

In A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244 at p. 265 I stated:

“This Court has previously drawn attention to the necessity to have child abduction cases heard speedily. It is entirely

unsatisfactory to have a delay such as exists in this case. It defeats in part the purpose of the Hague Convention. Parties and

professionals in these cases have a duty to proceed with expedition. Unfortunately, that did not occur in this case. It is

essential that child abduction cases are conducted speedily and that all persons involved, including expert witnesses, act with

all due expedition. Proceedings in this case were commenced in October, 1996. It is entirely unsatisfactory that they are

concluding in March, 1998.”

In R.K. v. J.K. [2000] 2 I.R. 416 at p. 452 Barron J. stated:

“Like too many similar cases there was an inordinate delay in this case. Blame for it does not however lie with the parties or the

President. Even October, 1996, to the hearing in May, 1997, was excessive, but to have continued until February, 1998 is not

acceptable. In the first place, the procedure is a summary one. Matters which relate to custody, access or maintenance are

matters for the courts of the requesting state. What the delay does is to heighten the emotional aspects of the case with

corresponding harm both to the parents and to the children. It encourages both parties to seek evidence which is not relevant

to the proceedings under the Convention. … What must be avoided is anything which smacks of a custody hearing …”

It is clear that there were a litany of problems in this case. These should be addressed by way of case management, both

administrative and judicial, in the High Court and in the Supreme Court. Court orders should be drawn up immediately a case

concludes. Judgments with non-identifying information should be signed as soon as possible. It would be desirable to have a practice

that once a notice of appeal is lodged in the Supreme Court office in a child abduction case the appeal should be automatically listed

for mention in the next Friday motion list. Child abduction cases should be dealt with promptly, expeditiously. This is so because that

is the law of the Hague Convention, the Child Abduction and Enforcement of Custody Orders Act, 1991 and the concept that the

paramount consideration is the welfare of the child. Also, such cases should be addressed promptly as the Hague Convention, to

which Ireland is a party, so requires.

Ruling

I would hear the parties on the form of wording and precise details of undertakings of the applicant. I would also hear of the

arrangements to be made to return the children to England in the care of the respondent pending an order of the Court in England. On

receipt of the appropriate undertakings, I would allow the appeal and set aside the order of the High Court, for the reasons given. The

applicant is entitled to an order directing the return of the minors T.M. and D.M. to England.